Unfair ticket for "using" a mobile in a car. Advice please!

Magic Beans

No offence, but what sort of a genius starts fiddleing with a mobile phone with a Garda right beside him? Double points I say.

mikelo303

Zambia wrote: »

The law has clearly been worded to indicte you should just leave the phone alone while in charge of a vehicle. If you just do that you would be right. If you wished to use it as a GPS it should be mounted in a commercial holder.

So my ticket was because I lacked 3 Euro worth iPhone holder?

Still silly for me.

Secondly I understand ticked if I were driving and calling but not where sitting in traffic for few minutes.

Anyway. The law is build in the way that you should pay ad shut up otherwise if You go to court you will pay 10 times more for thinking that you have any rights to defend yourself. I was an interpreter (translator) in court few times. I've seen how it goes. You have few seconds and you are gone. Case closed.

mikelo303

Magic Beans wrote: »

No offence, but what sort of a genius starts fiddleing with a mobile phone with a Garda right beside him? Double points I say.

Man. I literally touched screen to see where I am. One gesture. One second. Not picking up phone to my ear. Not calling, anything. Would you coinsider it as "using a phone" wile driving (and I was in full stop)? I thought using a phone while driving is actually calling or texting or holding it. I could scratch my balls and probably that would be more complicated than what I did there.

mikelo303

3.— (1) A person shall not while driving a mechanically propelled vehicle in a public place hold a mobile phone.

while driving - sitting in the car while in full stop. Is it driving?

seamus

mikelo303 wrote: »

while driving - sitting in the car while in full stop. Is it driving?

I would argue, yes, if you are queueing. If the car has been quite obviously parked, taking onesself out of the traffic flow, then you are not driving. But if you are sitting in the traffic lane, engine on and in the traffic flow, moving or not, then I would say that legally you are driving your vehicle. After all, if you make a call while stopped, what are you going to do when the traffic starts moving again?

Overall, it's a pretty ****ty thing for the Garda to have done. Maybe they'd been watching the OP for longer than he thought and actually observed him using the phone while moving. Or maybe they were annoyed by him ignoring their presence. Or maybe they saw him fiddling with the phone and decided that he was using it for texting or web surfing.
Or maybe they were simply bored sitting in traffic, saw a very minor offence and decided to pull him for it.

FreudianSlippers

seamus wrote: »

I would argue, yes, if you are queueing. If the car has been quite obviously parked, taking onesself out of the traffic flow, then you are not driving. But if you are sitting in the traffic lane, engine on and in the traffic flow, moving or not, then I would say that legally you are driving your vehicle. After all, if you make a call while stopped, what are you going to do when the traffic starts moving again?

Overall, it's a pretty ****ty thing for the Garda to have done. Maybe they'd been watching the OP for longer than he thought and actually observed him using the phone while moving. Or maybe they were annoyed by him ignoring their presence. Or maybe they saw him fiddling with the phone and decided that he was using it for texting or web surfing.
Or maybe they were simply bored sitting in traffic, saw a very minor offence and decided to pull him for it.

I'd agree with this. It's not like if he pulled over to the side of the road out of traffic and used the phone they would have given him the ticket IMO.
It's because he was in traffic and "driving".

I do think it's a stretch to say he was "holding" "cradling" or "supporting" it though.

HellFireClub

Zambia wrote: »

The device is a mobile phone what you use it for does not matter.

The device is not a mobile phone when it is being used as a GPS system. My laptop has mobile phone capabilities but it doesn't become a mobile phone because of that, it is still a laptop. Same holds true for handheld devices with multiple functionalities, as is clearly the case here.

The fact that the OP has to risk 2K to have access to the presumption of innocence, shows what a sorry backwater gombeen infested little kip this country really is.

source

mikelo303 wrote: »

3.— (1) A person shall not while driving a mechanically propelled vehicle in a public place hold a mobile phone.

while driving - sitting in the car while in full stop. Is it driving?

I don't have a reference to post, but from personal experience in court when you're in control of a car in traffic, that is classed as driving for the purposes of this Act. I have seen people try this defence before and fail.

FreudianSlippers

foinse wrote: »

I don't have a reference to post, but from personal experience in court when you're in control of a car in traffic, that is classed as driving for the purposes of this Act. I have seen people try this defence before and fail.

In fairness it'd be sort of like saying you weren't drink driving because you were at a traffic light

FreudianSlippers

HellFireClub wrote: »

The device is not a mobile phone when it is being used as a GPS system. My laptop has mobile phone capabilities but it doesn't become a mobile phone because of that, it is still a laptop. Same holds true for handheld devices with multiple functionalities, as is clearly the case here.

The fact that the OP has to risk 2K to have access to the presumption of innocence, shows what a sorry backwater gombeen infested little kip this country really is.

And how prey tell would they do it in other amazing frontwater countries?

source

FreudianSlippers wrote: »

foinse wrote: »

I don't have a reference to post, but from personal experience in court when you're in control of a car in traffic, that is classed as driving for the purposes of this Act. I have seen people try this defence before and fail.

In fairness it'd be sort of like saying you weren't drink driving because you were at a traffic light

Exactly my point.

HellFireClub

FreudianSlippers wrote: »

In fairness it'd be sort of like saying you weren't drink driving because you were at a traffic light

I have no problem with fixed penalty solutions for things like speeding offences, because there are technological checks and balances in place to ensure that you have firstly committed the offence and that secondly the offence can be firmly connected to you, and the opinion of a Garda doesn't come into it, because the camera in the van has photographed/videoed you breaking the speed limit, therefore the process is objective and not exposed to subjectivity, the speed of the vehicle is clear, the speed limit is clear, the vehicle identity is clear and the driver's face is clear, therefore the process is fair.

But that's not what has happened here. First of all, the law isn't clear, because what if you are holding (or touch as the case seems to be here), a device that is not by definition a mobile phone, although it has mobile phone functionality within it, just the very same as a laptop or a palm held PC device. The device is then indentical in functionality to key onboard navigation systems that are in every second car and are legal.

But leaving that argument aside for a minute, whether a crime has been committed or not, is not the outcome of an objective analysis, it is completely and utterly down to the subjectivity of the Garda involved. The whole thing is down to the subjectivity of one person who has been downright abusive to the OP, which brings into question his competence and degree of professionalism.

Now, for the OP to have access to his presumption of innocence, HE has to take a Garda into court, risk 2K and double penalty points on his license, just to be able to to back to the start of the process and for him to be assumed to be innocent and if he is to be convicted, then to be convicted on the basis of objective evidence that can stand up by itself.

This on the same week that four Gardai are on trial for allegedly: unlawfully breaking into a house, beating the absolute sh*t out of a young lad they were looking for and to accomplish all of this, illegally locked up his mother in her own bedroom?!?

Source: http://www.breakingnews.ie/ireland/garda-witness-testifies-at-assault-case-511781.html

Are you having a laugh?!?

tsoparno

i'd probably pay just to save any more hassle and just to get finished with it.
doesn't take away the fact that the garda was a f###ing a###hole a bit of cop on is all was needed the car was stopped and was no danger to anyone.
with ref to the coffee spilling incident if someone cause's an accident from this or similar incident then yes do them for undue care.
only last week i saw a garda driving while on the phone no prob for him

Finnbar01

Magic Beans wrote: »

No offence, but what sort of a genius starts fiddleing with a mobile phone with a Garda right beside him? Double points I say.

If you read what the OP said, he wasn't fiddling with his mobile phone at all. Why is there such a lack of common sense and discretion in this country?

Magic Beans

I did, and he was. Ask him, ask the Gardaí.

HellFireClub

tsoparno wrote: »

i'd probably pay just to save any more hassle and just to get finished with it.
doesn't take away the fact that the garda was a f###ing a###hole a bit of cop on is all was needed the car was stopped and was no danger to anyone.
with ref to the coffee spilling incident if someone cause's an accident from this or similar incident then yes do them for undue care.
only last week i saw a garda driving while on the phone no prob for him

They are all exempt from RTA legislation, which flies in the face of what some Gardai on here are claiming, which is that anything that distracts you is increasing your risk of having an accident.

I'd argue that if you are not familar with the area you are driving in, then you are in fact substantially safer using a GPS navigation system, than you are if you do not know where you are going, causing you to not proceed at the correct speed, be unsure of what your next manouvre may be, etc...

This piece of legislation measn that by trying to be safer and drive in an educated fashion as opposed to not having a clue where you are actually going and driving in a manner consistent with that confusion, you are apparently committing on offence?!?

FreudianSlippers

tsoparno wrote: »

i'd probably pay just to save any more hassle and just to get finished with it.
doesn't take away the fact that the garda was a f###ing a###hole a bit of cop on is all was needed the car was stopped and was no danger to anyone.
with ref to the coffee spilling incident if someone cause's an accident from this or similar incident then yes do them for undue care.
only last week i saw a garda driving while on the phone no prob for him

Finnbar01 wrote: »

If you read what the OP said, he wasn't fiddling with his mobile phone at all. Why is there such a lack of common sense and discretion in this country?

HellFireClub wrote: »

They are all exempt from RTA legislation, which flies in the face of what some Gardai on here are claiming, which is that anything that distracts you is increasing your risk of having an accident.

I'd argue that if you are not familar with the area you are driving in, then you are in fact substantially safer using a GPS navigation system, than you are if you do not know where you are going, causing you to not proceed at the correct speed, be unsure of what your next manouvre may be, etc...

This piece of legislation measn that by trying to be safer and drive in an educated fashion as opposed to not having a clue where you are actually going and driving in a manner consistent with that confusion, you are apparently committing on offence?!?

In all seriousness, have you even bothered to so much as glance at the act before spouting off here? I'm usually pretty tolerant for these sorts of things, but recently it seems that everyone is an expert but hasn't even bothered to even google it for 30 seconds.

3.— (1) A person shall not while driving a mechanically propelled vehicle in a public place hold a mobile phone.

(2) Subsection (1) does not apply to a member of the Garda Síochána, an ambulance service or a fire brigade of a fire authority (within the meaning of the Fire Services Act 1981 ) who is acting in the course of his or her duties and holding a mobile phone in relation to the performance of his or her duties.

(3) A person who contravenes subsection (1) is guilty of an offence.

(4) The Minister may, to avoid the impairment or interference with the driving capacity or capabilities of the driver of a mechanically propelled vehicle, make regulations in relation to the restriction or prohibition in mechanically propelled vehicles in public places of the use of—

(a) a mobile phone (other than in the circumstances referred to in subsection (1)),

(b) an in-vehicle communication device,

(c) information equipment, or

(d) entertainment equipment.

(5) Different regulations may be made under subsection (4) for different classes of cases coming within the same class of equipment or for different classes of vehicles in relation to such equipment or different classes of persons.

(6) A person who contravenes or fails to comply with regulations made under subsection (4) is guilty of an offence.

(7) It is a defence for a person charged with an offence under subsection (3), in relation to holding a mobile phone while driving a mechanically propelled vehicle, or under subsection (6), in relation to the use of a mobile phone or an in-vehicle communication device, to show that he or she was—

(a) using it to call the Garda Síochána, an ambulance, fire or other emergency service on numbers prescribed for such service, or

(b) involved in or acting in response to a genuine emergency.

(8) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding €2,000.

(9) In this section—

“ hands-free device ” means a device designed so that when used in conjunction with a mobile phone there is no need for the user to hold the phone by hand;

“ hold ”, in relation to a mobile phone, means holding the phone by hand or supporting or cradling it with another part of the body;

“ interactive communication function ” includes—

(a) sending or receiving oral or written messages,

(b) sending or receiving facsimile documents,

(c) sending or receiving still or moving images, or

(d) providing access to the internet;

“ in-vehicle communication device ” means a communication device designed or adapted to be attached to or integrated into a mechanically propelled vehicle or which may be used in or on such a vehicle and with which a person is capable of making or receiving a call or performing an interactive communication function and includes a two-way radio;

“ mobile phone ” means a portable communication device, other than a two-way radio, with which a person is capable of making or receiving a call or performing an interactive communication function, but for the purposes of subsection (1) does not include a hands-free device;

“ portable ” in relation to a mobile phone, means the phone is designed or adapted to be carried by a person;

“ two-way radio ” means an apparatus for wireless telegraphy which is designed or adapted for the purpose of transmitting or receiving spoken words or messages between a person and another, using a frequency other than a frequency used by a mobile phone.

Now clearly it could be argued that the OP was not "holding" within the definition of the act and s/he is perfectly capable of going to explain this to the Gardaí and/or the Court.

Secondly, there is no discretion of the Gardaí in this matter if they are "holding" the phone:

(3) A person who contravenes subsection (1) is guilty of an offence.

As I said earlier, I think it's a bit much to go after the OP on this act - I completely agree that the Garda in question should have exercised some discretion and let him go.
BUT... if he was "holding" the phone in accordance with the definitions in legislation then the Garda had no choice IMO but to issue the citation.

Finally, it's manifestly obvious that there are exceptions for Gardaí in the act so I'm not even going to bother responding to that line (and no, btw, I'm not a Garda before everyone starts that messing again).

mikelo303

tsoparno wrote: »

i'd probably pay just to save any more hassle and just to get finished with it.
doesn't take away the fact that the garda was a f###ing a###hole a bit of cop on is all was needed the car was stopped and was no danger to anyone.
with ref to the coffee spilling incident if someone cause's an accident from this or similar incident then yes do them for undue care.
only last week i saw a garda driving while on the phone no prob for him

I will pay just to get over with this shi*.

Gues what. Garda is excluded and they can call while driving.

(1) does not apply to a member of the Garda Síochána, an ambulance service or a fire brigade of a fire authority (within the meaning of the Fire Services Act 1981 ) who is acting in the course of his or her duties and holding a mobile phone in relation to the performance of his or her duties.

FreudianSlippers

mikelo303 wrote: »

I will pay just to get over with this shi*.

Gues what. Garda is excluded and they can call while driving.

(1) does not apply to a member of the Garda Síochána, an ambulance service or a fire brigade of a fire authority (within the meaning of the Fire Services Act 1981 ) who is acting in the course of his or her duties and holding a mobile phone in relation to the performance of his or her duties.

Have you even tried contacting the Garda and explaining the situation?

mikelo303

FreudianSlippers wrote: »

Have you even tried contacting the Garda and explaining the situation?

Well the case is I asked for his name and he did not replied. I was thinking to wait for the ticket (it should contain his name or something) and then write a letter to him, or his boss. I have no clue how it works. Let's say to his department. Whatever, using ticket number as reference.

HellFireClub

FreudianSlippers wrote: »

In all seriousness, have you even bothered to so much as glance at the act before spouting off here? I'm usually pretty tolerant for these sorts of things, but recently it seems that everyone is an expert but hasn't even bothered to even google it for 30 seconds.

Yes I have. So say the device that the OP allegedly touched here was not in fact a "mobile phone" but was instead a dedicated GPS Natigational system that had no mobile phone functionality, and it was held in his vehicle in a cradle that came with the system and he was engaging with the system by touching it.

Under what you have cited there, he could not have been accused of a crime if I am right?

Finnbar01

FreudianSlippers wrote: »

Have you even tried contacting the Garda and explaining the situation?

I'm sure the garda undertsood the situation there and then. From what the OP has said, the garda seemed to have gotten out of the wrong side of the bed that morning.

FreudianSlippers

HellFireClub wrote: »

Yes I have. So say the device that the OP allegedly touched here was not in fact a "mobile phone" but was instead a dedicated GPS Natigational system that had no mobile phone functionality, and it was held in his vehicle in a cradle that came with the system and he was engaging with the system by touching it.

Under what you have cited there, he could not have been accused of a crime if I am right?

Unless the minister sets regulations otherwise under Section 4, correct.

stephendevlin

Have your day in court. Explain your situation and give all "relevant" details. Have your phone company give you a letter to state that no text message was sent at that time nor was there a phone call made. Make sure you know what time the guard stopped you. Do not get into details about the guards demeanor.

Finnbar01

stephendevlin wrote: »

Have your day in court. Explain your situation and give all "relevant" details. Have your phone company give you a letter to state that no text message was sent at that time nor was there a phone call made. Make sure you know what time the guard stopped you. Do not get into details about the guards demeanor.

AFAIK, the judge is under no obligation to read any letter from the phone company.

mikelo303

Finnbar01 wrote: »

I'm sure the garda undertsood the situation there and then. From what the OP has said, the garda seemed to have gotten out of the wrong side of the bed that morning.

Yoo know. From the first moment when I saw his face I knew it's going to be **** storm. I don't know what happened to him taht day but he was pissed off just from the start. It's not like I said something stupid or did something. Well, Karma goes around, I am sure it will kick him in the as* sooner or later. Just a pity that it won't have my name on it

tsoparno

@ freudianslippers

no i haven't read the act because i couldn't be bothered cause it won't say anything about common sense.
if the garda looked across and saw his brother in the car beside him touching the GPS system i dont think he would've had the same reaction

MagicSean

mikelo303 wrote: »

Well the case is I asked for his name and he did not replied. I was thinking to wait for the ticket (it should contain his name or something) and then write a letter to him, or his boss. I have no clue how it works. Let's say to his department. Whatever, using ticket number as reference.

You haven't actually gotten a ticket yet?

mikelo303

Seanbeag1 wrote: »

You haven't actually gotten a ticket yet?

No. That happened two days ago. I haven't received anything yet. It will take probably week or so. It is strange for me that gardai here do not give you anything in writing while they stop you. He said I will receive it by post.

MagicSean

mikelo303 wrote: »

No. That happened two days ago. I haven't received anything yet. It will take probably week or so. It is strange for me that gardai here do not give you anything in writing while they stop you. He said I will receive it by post.

He may have just been giving you a scare. If you do receive a ticket his name will be on it. You then have the option of writing to the Superintendent or if you really feel agrieved you can contact the Ombudsman and make a complaint, or you can pay it or you can go to court.